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Great Minds v. FedEx Office & Print Servs., Inc.

By Barry Werbin

The Second Circuit decision issued on March 31st in Great Minds v. FedEx Office & Print Servs., Inc. (No. 17-808-cv) (Great Minds v. FedEx (2d Cir.).pdf) found that the terms of a Creative Commons open license granted by the publisher of a "Eureka Math" curriculum that permitted copying and use of the free downloaded course materials by anyone for a non-profit purpose, required dismissal of an infringement claim against FedEx whose stores had made copies of the curriculum for school districts and charged for those copies. The download license terms did not expressly restrict further copying assistance by third parties at the direction of the authorized non-profit licensees. Note that FedEx had disclaimed reliance on a fair use defense.

The Court held:

"Because FedEx acted as the mere agent of licensee school districts when it reproduced Great Minds' materials, and because there is no dispute that the school districts themselves sought to use Great Minds' materials for permissible purposes, we conclude that FedEx's activities did not breach the license or violate Great Minds' copyright....

We hold that, under long‐established principles of agency law, a licensee under a non‐exclusive copyright license may use third‐party assistance in exercising its license rights unless the license expressly provides otherwise. We therefore affirm the District Court's conclusion that FedEx did not infringe Great Minds' copyright. FedEx reproduced the Materials at the direction of Great Minds' authorized licensees, and nothing in the License prohibited the licensees from seeking FedEx's services...."

"[W]e conclude that Great Minds' licensees may rely on non‐employee agents in carrying out permitted uses without converting those agents into independent licensees. The License text provides no basis for distinguishing between a school that directs its employees to make copies on the school's machines and a school that achieves an identical result by enlisting a temporary independent contractor--or a commercial duplication service."

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This page contains a single entry from the blog posted on March 27, 2018 4:59 PM.

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